Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football

Abstract

Under the current landscape of First Amendment free speech and Establishment Clause jurisprudence, the boundaries of permissible speech at the university level has not been decided by the Supreme Court. While public employees have the right to speak out on matters of public concern and religious speech cannot be excluded from government property under the premise that it represents viewpoint discrimination, the exact boundaries of employee speech regarding religious matters is uncertain at best. Further, the Court’s Establishment Clause doctrine, although appearing to move toward adoption of the coercion test, is muddled with conflicting tests and ideologies. What happens when these rights so valuable and vital to the Constitution, intersect has not been settled by the Supreme Court. Several recent trends in collegiate football have raised serious issues regarding this uncertainty, as head coaches at major collegiate athletic programs seek to exercise their right to speak on matters of religion to players. Their speech raises Establishment Clause concerns for fear that students will be coerced to participate or acquiesce to the coach’s desires.This article proposes a method for resolving these differences. In Part I, I will analyze the background law governing public employee’s free speech claims, the intersection between the freedom of speech and the Establishment Clause, and whether coercive speech falls outside the realm of constitutional protection. In addition, I will provide background on the Court’s Establishment Clause jurisprudence regarding the Coercion test, as well as the implications of the recent case of Town of Greece v. Galloway. In Part II, I will set out the views of several Circuit Courts of Appeals on the issue. In Part III, I explain why religious speech is a matter of public concern, and why the Coercion Test represents the best tool for analyzing potential Establishment Clause violations at the university level. In Part IV, I will separately analyze the issue of prayer using the same methodology. Finally, in Part V I will set out my test for a violation with regard to employee speech in the university context, namely that the coercion test, where coercion is defined as either mandatory presence at an event, religious service, or some other instance that represents a blatant and clear violation of the Establishment Clause, or the imposition of harmful punishments or consequences for disagreement or non-participation, represents the proper test. I will then apply this test to several real life examples in the world of college football.